Escolar Documentos
Profissional Documentos
Cultura Documentos
Section Two
Everything Becomes Illegal:
How Court-Imposed
Conditions Set People up to Fail
“Conditions” are the everyday term • short-term jail stays for breaching
for a set of court- or police-imposed conditions can have long-term,
rules that people who are involved serious, or life-threatening
with the criminal justice system, consequences;
but not incarcerated, are obliged to • people living homeless
follow. Conditions prohibit or make experience uniquely negative
mandatory certain behaviours like impacts of various conditions;
abstinence from alcohol or drugs,
carrying harm reduction equipment, • conditions can create
setting foot in a specific geographic homelessness or housing
area, or being out of one’s place precarity; and
of residence past specified hours. • some conditions cause more
Failure to adhere to conditions harm than others:
can put a person at risk of criminal
conviction. • abstinence conditions
criminalize people with
Being charged or convicted of addictions;
failing to adhere to one’s conditions
is often referred to as a “breach” • prohibitions on carrying so-
or “breaching.” For many living called “drug paraphernalia”
in poverty and homelessness, criminalize health care and put
especially people who rely on drugs people’s health at risk; and
and alcohol, court- and police-
imposed conditions play a ubiquitous • area restrictions (better known
role in shaping their lives. as “red zones”) prohibit people on carrying weapons or phones,
from accessing the services, reporting to a corrections or bail
During research for Project Inclusion, spaces, and communities that official, or not changing residential
we asked people if they were subject they rely on. address without giving notice.
to conditions and, if so, how those
conditions were impacting their daily Conditions are intended to address The conditions we address here
lives. the specific circumstances of an are not those designed to stop
accused or convicted person in a convicted sex offender from
We learned: light of the particular offence at loitering in parks, nor are they about
issue. While they vary from person restricting a violent offender’s access
• conditions are setting some
to person, they are not uniquely to a weapon. The conditions we
people up to fail, leading them
customized to each person. examine in Project Inclusion are what
into a cycle of criminalization
Conditions are often chosen from we call “behavioural conditions” –
and incarceration for relatively
a set number of common options conditions that control the everyday
innocuous behaviours;
including: curfews, abstinence activities of people who are working
from drugs or alcohol, prohibitions in the grey economy, experiencing
PROJECT INCLUSION 73
Behavioural conditions often do not properly reflect how reflected in what Pivot sees every
the intersections of poverty, substance use, addiction, day. The other thing we saw is how
behavioural conditions actually make
mental health, disability, and racism shape people’s
certain behaviours criminal that
lives and daily activities. Our research found that while otherwise wouldn’t be in absence
adhering to behavioural conditions is impossible for of a court order or police-imposed
many of the people we interviewed, breaching them puts condition. For example, by making
them at risk for criminal sanction. drinking alcohol or staying out
late illegal through the imposition
of conditions, the criminal justice
homelessness, and/or using which is not yet law, may or may not machine is actually producing
substances.143 Behavioural conditions improve their circumstances. criminalization that otherwise would
often do not properly reflect how the not exist. In one Senate report,
intersections of poverty, substance these offences were described in
WHERE DID ALL THE REAL
use, mental health, disability, and part as ones that “rarely involve
CRIMINALS GO?
racism shape people’s lives and harm to a victim” and “do not involve
It’s easy to vilify someone labelled a behavior that is popularly considered
daily activities. Our research found
criminal. We can all conjure the image ‘criminal.’”146
that while adhering to behavioural
of a criminal mastermind or a violent
conditions is impossible for many of Over the last decade, our justice
predator. Yet once we scratch the
the people we interviewed, breaching system has made a “significant
surface of the “criminal” label, we find
them puts them at risk for criminal transition to the ‘front end’ of the
something more complex and often
sanction. justice process,”147 meaning that
more benign than villainous pop
We will review how conditions culture representations suggest. We police and courts are focusing more
are imposed on people and the find people making the best choices on how people are controlled and
philosophy behind reliance on available to them while navigating policed while they are on bail—before
conditions, by discussing each of a life impacted by poverty, trauma, they are convicted of a crime. This
these issues in turn. racism, colonization, homelessness, has resulted in both an increased
ill health, and substance use.145 reliance on behavioural conditions
In the course of writing this report, and proactive enforcement of those
the federal government released Bill conditions by police. As these
C-75, An Act to amend the Criminal behavioural control tactics have
Code, the Youth Justice Act and other increased, so too have criminal
Acts and to make consequential Pre-trial detention is charges for breaching behavioural
amendments to other Acts (C-75).144 now outpacing the rate conditions, which have become
Critique of C-75 has rolled in from of people in sentenced the most common criminal offence
many corners of the legal profession. custody. cycling through our courts. As a
While many aspects of C-75 will result, the rate of pre-trial detention
impact the lives of participants in is now outpacing the rate of people in
Project Inclusion, we are focused here sentenced custody.148
solely on the impact of behavioural During the course of our work, we
conditions on participants. spoke with a defence counsel, a Research for Project Inclusion
lawyer who represents accused included extensive interviews with
In this section, we focus on sharing people and ensures they have a fair people whose bail and probation
the stories of how various types of trial. She told us that after decades conditions have negatively impacted
conditions are harming people. We of this work, she rarely sees actual their lives. While bail and probation
will also touch briefly on how C-75, crime in these courts anymore. She conditions are often justified by the
just sees poverty. Her experience is courts as measures that maintain
143 Marie-Eve Sylvestre et al, Red Zones and other Spatial Conditions of Release Imposed on Marginalized People in Vancouver (University of Otta-
wa, Simon Fraser University, Université de Montréal: 2017) at 13 and 55.
144 1st Sess, 42nd Parl, 2018 (C-75).
145 Catherine Chesnay et al, “Taming Disorderly People One Ticket at a Time: The Penalization of Homelessness” (2013) 55:2 Canadian Journal of
Criminology and Criminal Justice at 161 and Marianne Quirouette et al, “Conflict with the Law: Regulation & Homeless Youth Trajectories toward
Stability” (2016) 31:3 Canadian Journal of Law and Society at 383.
146 Standing Senate Committee on Legal and Constitutional Affairs, Delaying justice is denying justice: an urgent need to address lengthy court
delays in Canada (Final Report), June 2017 at 139.
147 William Damon, Spatial Tactics in Vancouver’s Judicial System (M.A. Geography, Simon Fraser University, Burnaby, 2014) [unpublished] at 22,
online: http://summit.sfu.ca/item/14152.
148 Damon at 2, 22-26.
149 Marie-Eve Sylvestre et al. “Spatial Tactics in Criminal Courts and the Politics of Legal Technicalities” (2015) 47:5 Antipode at 1346.
150 Abby Deshman & Nicole Myers, Set up to Fail: Bail and the Revolving Door of Pre-trial Detention (Canadian Civil Liberties Association, 2014) at
62-63.
151 See example Sylvestre (2017) at 67.
152 D. Geoffrey Cowper, QC, A Criminal Justice System for the 21st Century: Final Report to the Minister of Justice and Attorney General Honourable
Shirley Bond (BC Justice Reform Initiative, 2012) at 148.
153 D. Geoffrey Cowper, QC, A Criminal Justice System for the 21st Century: Fourth Anniversary Update to the Minister of Justice and Attorney Gen-
eral Suzanne Anton, QC (2016) at 8.
154 These figures are not adjusted for population growth.
155 Damon at 23-24.
156 Sylvestre (2017) at 30.
157 Juristat, Adult and youth correctional statistics in Canada, 2016/2017 (Canadian Centre for Justice Statistics, 2018) Catalogue no 85-002-X at 3.
158 Deshman & Myers at 7.
159 Cowper (2012) at 279.
PROJECT INCLUSION 75
How Conditions Work
Conditions can be imposed at different stages in the criminal not communicate with the victim or witness, deposit
justice process; passport, inform police of a change in address, refrain
from going to any specified place, report at a specified
1. People who have not been found guilty of an offence and
time. Courts may furthermore impose conditions
are not kept in custody pending trial may encounter one of
necessary to ensure the safety and security of any victim
two scenarios: they will either be released by a police officer
or witness or other reasonable conditions specified in
or they will be brought into the court system to resolve the
the order as the justice considers desirable. Despite the
terms of their release (better known as “bail”):
discretion given to courts, they are required to release
a. Release by a police officer people on the least restrictive conditions available and
Police officers have legislated obligations regarding Crown must demonstrate the need for each restriction.
the release of persons they arrest with and without These safeguards are intended to ensure that people are
a warrant. Where there is no warrant for the arrest, released on the least restrictive conditions reasonable
and absent extenuating circumstances necessitating in the circumstance164 and reflect fundamental Charter
detention,160 officers are to release people without rights to reasonable bail and the presumption of
arresting them or as soon as practicable after arrest. In innocence.165
doing so, officers161 are required to release people with There are three purposes to imposing pre-trial
the least restrictions possible placed on their liberty. conditions: to ensure attendance at trial; to protect
Officers may, however, in some circumstances impose public safety; or, to maintain confidence in the
conditions listed in the Criminal Code including: remain administration of justice.
within the jurisdiction, abstain from communicating
People subject to conditions upon release by police
with the victim, deposit one’s passport, inform police of
or on bail have not been convicted of any offence and
a change in address, abstain from drugs or alcohol, and
conditions are not intended to be imposed in order to
any other condition that the officer in charge considers
rehabilitate or punish people.166
necessary to ensure the safety and security of any victim
of or witness to the offence. Officers do not, however, For ease of understanding, we will refer to both police-
have unfettered discretion to impose other conditions.162 imposed conditions and court-imposed conditions as
Police officer-imposed conditions are immediately “bail” and will differentiate between police-imposed and
enforceable, even though they have not been endorsed court-imposed conditions only where necessary.
by the court or reviewed by a prosecutor, and even
2. People who have been found guilty of an offence may have
before a decision has been made as to whether or not
conditions imposed on them where they are sentenced to
any charges will be laid against the individual. People
probation or conditional sentence orders, or when exiting
must either wait until their first court appearance, which
prison on parole.
can be months away, to request changes to these
conditions or they have to make a request to the court a. Probation
to appear at an earlier date to vary their conditions. Probation is a criminal sentence that is served in the
b. Interim release or “bail” community and is rehabilitative in nature. Conditions
imposed, in addition to legislatively required
People who are not released by police will not be
conditions,167 must “be reasonable and aim at protecting
brought before the court to resolve the terms of their
the society and facilitating the offender’s reintegration.
release or will negotiate their release by consent with a
They cannot be primarily punitive.”168 Further, there must
prosecutor (Crown). Both are forms of judicial interim
be “a nexus between the offender, the protection of the
release (bail). In most circumstances, the court is
community, and his reintegration into the community.”169
required to release people unconditionally unless the
Crown can demonstrate that detention is justified or b. Conditional sentence orders and parole
that imposing conditions on release is reasonable.163 A conditional sentence order (CSO) is a sentence of
Courts have broader discretion than police to impose imprisonment that a person is ordered to carry out in
conditions including: remain within the jurisdiction, do
160 People who are not released by police will not be brought
161 Criminal Code, ss 496, 497, 498, 503.
162 See also Deshman & Myers at 15.
163 Criminal Code, s 515, R. v. Antic, 2017 SCC 27, at paras 19, 67 [Antic]. See also R v Omeasoo, 2013 ABPC 328, at para 30 [Omeasoo].
164 Criminal Code, s 503 and Antic at para 67.
165 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c
1, ss 11(d) and 11(e) [Charter].
166 See Omeasoo at para 31.
167 These include “keep the peace and be of good behaviour,” do not communicate with victims or witnesses or go to any specific place
except with consent of the individual or order of the court, appear before the court as required, notify the court of changes in name,
address or employment. See example Criminal Code s 732.1.
168 Sylvestre (2017) at 21.
169 Sylvestre (2017) at 21.
Book Law Versus Street Justice this is having on day-to-day judicial in the Vancouver Provincial Court
Bail conditions are to be imposed practice. Regarding consent-based alone, 96.9% of all court-imposed
only where necessary and, where court bail,174 the SCC has dictated bail orders included conditions and
necessary, only to address concerns that these same principles should 78.6% had between two and eight
related to releasing a person on bail, guide the actions of Crown in cases conditions.176 Across BC in 2016/2017,
such as ensuring attendance in court, where conditions are imposed by red zones and abstinence conditions
public safety, and confidence in the consent. Due to difficulties in tracking were amongst the top ten conditions
administration of justice.172 Probation trends in consent-based court bail imposed on people released on bail.
conditions are imposed to influence over time, there has been little Red zones were imposed in 58%
the future behaviour of an individual opportunity to systemically assess of bail orders (25,118 orders) and
and probation is intended to be “a whether this has had an impact on abstinence conditions were imposed
rehabilitative sentencing tool…It is the actions of Crown in seeking bail in 38% of bail orders (16,246).177
not considered punitive in nature.”173 with conditions by consent.175
The heavy use and reported punitive
In relation to court bail, the Despite these legislated and effects and harms associated with
Supreme Court of Canada (SCC) has common law limitations on the these conditions have led to multiple
recently reiterated in R v Antic the purposes and use of conditions recent efforts by academics and civil
requirement that people be released under both bail and probation, the liberties advocates to bring these
unconditionally, absent justification imposition of conditions on some issues to light.178 Conditions have
for every condition to be imposed. community members remains also been the subject of analysis by
Since the judgement in 2017, there a prevalent issue, for a variety various entities of government.179
remains uncertainty as to the effect of reasons discussed below. For Despite these critiques and in the
example, between 2005 and 2012 face of the significant impacts on
172 Antic at para 67 (j) and Sylvestre (2017) at 17. See also Criminal Code subsection 515(10).
173 R v Rawn, 2012 ONCA 487 at para 35. See also R v Goeujon, 2006 BCCA 261 (CanLII) at para 49 and R v Shoker, 2006 SCC 44 at para 10.
174 These are conditions that both parties agree to; however, little consideration is given to the power dynamics between Crown or police and a
person facing arrest or detention. Those conditions make true consent illusory in many cases.
175 Antic at para 44.
176 Sylvestre (2017) at 43. This includes both Drug Treatment Court and Downtown Community Court projects.
177 Juristat at 10.
178 See Sylvestre (2017); Damon; Deshman & Myers; and John Howard Society, Reasonable Bail? (Toronto: John Howard Society, 2013).
Note that the Sylvestre (2017) report situates their analysis geographically, providing considerable social context for the Downtown Eastside of
Vancouver. While this analysis is accurate, the issues of poverty, addiction, homelessness, vulnerability to HIV and Hepatitis C are not geo-
graphic issues – they are social issues. Participants in Project Inclusion face the same societally imposed social context as people in the Down-
town Eastside; however, many do so in smaller communities where they are less visible to policy makers due to their numbers and often have
even less access to services and face stricter, more oppressive police- and court-imposed conditions.
179 See Cheryl Marie Webster, “Broken Bail” in Canada: How We Might Go About Fixing It (Research and Statistics Division, Department of Justice
Canada, 2015); Cowper (2012); Cowper (2016); and Standing Senate Committee on Legal and Constitutional Affairs at 134, 138-140.
PROJECT INCLUSION 77
For some participants, liberty and health, little seems to hours of their arrest to determine
agreeing to unnecessary have changed. if they will be further detained or
released. Based on what we heard
and unmanageable There remains considerable from participants, however, many
conditions has been the indication that conditions are, at people will sign conditions that
only way to avoid jail. times, being imposed for improper are unreasonable to avoid even 24
purposes (or purposes beyond their hours in custody, due to fears of
lawful scope), or are resulting in withdrawal, losing belongings on the
consequences that are contrary to street, or losing income, amongst
their stated purpose. For example, many others. Other people may sign
some bail conditions have been because they fear that they will be
assessed as being geared towards detained much longer once brought
so-called “character modification into custody. Either way, participants
or improvement”180 rather than told us that they did not feel they had
public safety or attendance in court. a choice when presented with police-
This motivation goes beyond the imposed conditions.
purposes of bail.
Their experience is supported by
Additionally, as we see clearly in our other literature that analyses the
data, conditions can send people into bail system181 and by local defence
a cycle of arrests for breaches of their counsel in the Lower Mainland, who
conditions, even where they have not reported to us that some police
been, and may never be, convicted officers release people on highly
of an underlying offence. Further, onerous conditions that a judge
probation conditions are increasingly would be very unlikely to impose and
placing people back into the criminal then schedule an accused person’s
justice system rather than serving first court appearance months in
their intended purpose, which is to the future. This means people are
support people’s reintegration into subject to overly harsh conditions
our communities. for a significant period of time before
even attending court where a judge
Outside of the strictures of court-
may vary their conditions or before
imposed conditions, it seems clear
requesting a review by a prosecutor—
that police continue to leverage
an onerous mechanism that we did
their ability to arrest as a means
not hear was an effective tool for
of imposing conditions on people
people affected. Moreover, if Crown
that are not always necessary,
later decides not to approve charges,
transparent, or warranted. For some
people will have spent months
participants, agreeing to unnecessary
subject to those conditions without
and unmanageable conditions has
charges ever being laid against them.
been the only way to avoid jail.
Further, sometimes these police-
They automatically red-zoned
imposed conditions are written down
me from the area when they
as part of an appearance notice, as
arrested me. They basically said
described above. Sometimes they are
it was my choice whether I was
only verbal warnings. These verbal
going to walk or be jailed…this
warnings are not legally enforceable,
is the RCMP—and that’s how the
but we heard that people often feel
red-zoning came about, whether I
bound by them in order to avoid
signed that paper to be red-zoned
harassment by police, or that they
or not. If I didn’t sign it I would go
were unsure whether they had
to jail. – 427
received a warning or an enforceable
The law requires that anyone who condition.
refuses to sign such police-imposed
All of this results in uncertainty and
conditions and is arrested must be
fear for people who do not know
brought before the court within 24
180 Deshman & Myers at 50. See also Sylvestre (2017) at 32; Cowper (2012) at 149; and R v Reid,
1999 BCPC 12 at para 58.
181 See Deshman & Myers at 24.
PROJECT INCLUSION 79
Of 1,854 reported overdose deaths in BC between January
2016 and July 2017, based on Coroner data publicly
available as of April 2018, 18% of people died while under
community corrections supervision (for example, they
were on probation in the community) or within 30 days
of release from a correctional facility.
realistic or wholly unrealistic) simply them up to fail—which is, in reality, range from 8-24 hours after last use;
to secure his or her immediate often no real choice at all. for long-acting opioids (methadone),
release from custody.”182 This is 12-48 hours after last use.183 Thus
equally true of other conditions. Even Short-Term Detention even a day or a few days in custody
Can Have Lasting Negative can send a person into painful,
The fact that people give Consequences sometimes debilitating withdrawal or
perfunctory agreements is not death.184 For pregnant women, opioid
evidence of personal shortcomings Spending just a few days in jail for
withdrawal can cause miscarriage or
such as dishonesty or a lack of breaching a condition means losing
premature delivery.185
trustworthiness. These widely your liberty. It can also mean being
accepted stereotypes about people subjected to other harms associated Also, the correlation between
involved with the criminal justice with incarceration. The fact that incarceration and risk of overdose
system prevent us, as a society, from detention related to assessing bail is distressingly strong. This is
taking a closer look at the systemic or breaching conditions may be particularly clear in the weeks
barriers that colour their lives. In the short-term, anywhere from a day to following discharge.186 Of 1,854
moment of signing one’s name on a few months, does not alleviate the reported overdose deaths in BC
a set of conditions that they cannot harms of such detentions nor does it between January 2016 and July
follow, perfunctory agreements justify the over-use or over-policing of 2017, based on Coroner data publicly
are less about the signer actively conditions. available as of April 2018, 18% of
disobeying the law and more about people died while under community
a human thrust to make choices to Overdose Risk and Lack of Harm corrections supervision (for example,
best protect one’s health and safety Reduction they were on probation in the
while managing chronic substance Short-term jail stays can mean community) or within 30 days of
use. going through viciously painful release from a correctional facility.187
withdrawal and increasing one’s risk
For police and the Crown, imposing One 2016 Toronto-based study
of overdosing upon release. Rates
stricter conditions than necessary or found that people are at almost 12
and timing of withdrawal range
failing to acknowledge an individual’s times greater risk of a fatal overdose
according to the kind of substance
social circumstances at this stage after they are released from custody
being used and the circumstances of
means making someone choose compared to the rest of the Ontario
the individual. For fast-acting opiates
between jail or conditions that set population.
(heroin), onset of withdrawal can
188 Federal correctional institutions are used to imprison people sentenced to a jail term of two years or more. Provincial institutions detain people
prior to being convicted or sentenced, and people sentenced to less than two years in jail.
189 Correctional Service of Canada Needle Exchange Program Working Group, Needle Exchange Programs (Correctional Service of Canada, 1999),
at 3.
190 M-J Milloy et al, “Incarceration is Associated with used Syringe Lending Among Active Injection Drug Users with Detectable Plasma HIV-1 RNA: a
longitudinal analysis” (2013) 13 BMC Infectious Diseases at 565-575.
191 Peter M Ford et al, “Voluntary Anonymous Linked Study of the Prevalence of HIV Infection and Hepatitis C Among Inmates in a Canadian Feder-
al Penitentiary for Women” (1995) 153 CMAJ at 1605-1608.
192 Correctional Service of Canada, Summary of Emerging Findings from the 2007 National Inmate Infectious Diseases and Risk-Behaviour Survey
(Correctional Service of Canada, 2010) at 51.
193 Paul Webster, “Saving lives by giving drugs to opioid-addicted prisoners” (National Observer June 23, 2017), online: http://paulcwebster.com/
drug-politics/saving-lives-by-giving-drugs-to-opioid-addicted-prisoners/.
194 John Howard Society, Help Wanted: Reducing the Barriers to Youth With Criminal Records, (Toronto: John Howard Society, 2014), online: http://
johnhoward.on.ca/wp-content/uploads/2014/07/johnhoward-ontario-help-wanted.pdf.
195 See e.g. Deshman & Myers at 10, 59; Sylvestre (2017) at 59; Damon at 27; Standing Senate Committee on Legal and Constitutional Affairs at
147.
PROJECT INCLUSION 81
to stigmatizing fear that allowing the overuse and non-discerning people living vulnerably becomes
them to stay in the neighbourhood application of conditions such as red more harmful than benign dislike; it
would mean they would “accost zones, which will be discussed in becomes a mechanism of law that
any and all males.”196 Very little has detail below. puts lives and safety in danger.
changed over the past 40 years.
In a 2017 report on the use of red We know that displacing people Stigma also drives historical and
zones, perspectives of various legal who are homeless, use substances, contemporary attempts to control or
actors (judges, crown, police—the and engage in sex work puts their render those labelled as “homeless,”
very group of people empowered to lives at risk. When people who “prostitute,” “addict,” or “drunkard”
impose conditions) reflected ongoing are homeless are displaced from invisible. Laws that attempt to
societal stigma facing people who their communities, they are put at control the location, behaviour, and
rely on public space and people who increased risk of assault and have visibility of people who lack what
use substances. decreased access to the services is conventionally understood as
they rely upon.199 When people who legitimate employment or housing
For example, one justice system use drugs fear criminal sanction, they have a long and complex history.
official referred to a local community risk overdosing “alone and far from Despite significant changes in the
park as a place where “no pro-social medical help.”200 When sex workers language and nature of these laws,
activities…happen.” Characterizing are displaced, their lives are put in there are common threads that can
the park as a site of “drug use danger because their displacement be followed through to today’s laws,
and drug dealing”197 seemed to means moving their work to more including the use of conditions.
justify routinely red zoning people dangerous environments, farther Between the 16th and 18th centuries,
from it. Likewise, people talked from support networks and ready criminalizing so-called “vagrants”
about the need to keep people help.201 was common and extensive. In
out of a neighbouring geographic 16th century England, for example,
area because “there are schools, We have seen the chilling the most common punishments
daycares…like, it is a community.”198 consequences of such displacement for vagrants included repatriation
These stereotypes devalue low- for sex workers play out in to one’s parish;204 essentially being
income community members and Vancouver’s Downtown Eastside. displaced and banished, or, in current
dismiss the importance of public After sex workers were displaced terms, red-zoned. Such laws proved
spaces as places of community, from the rapidly gentrifying West ineffective, merely resulting in the
harm reduction, and social inclusion. End of Vancouver between 1975 and passing of “vagrants” from parish
This line of thinking promotes a 1985, partially through the imposition to parish. Despite this, we continue
false, divisive dichotomy between of red zones on individuals engaged to see the reproduction of these
low-income people and the broader in sex work, they were left with few very practices and harms in our
community, as though they cannot options but to work in poorly lit contemporary justice system.205
both be valid groups sharing the industrial zones in the Downtown
same space. Eastside.202 There, 67 women One need only look at Canada’s
engaged in sex work disappeared history with alcohol and drug
These perceptions, held by those from the area and were murdered prohibition to see how stigma,
empowered to impose conditions, by convicted serial killer Robert colonization, and racism continue
are stark examples of the depth Pickton.203 These are just some of the to impact how our laws treat people
of misunderstanding underlying myriad ways in which stigma against who use substances. For example,
196 R v Deuffoure, 1979 CanLII 402 (BCSC) at para 5.
197 Sylvestre (2017) at 55.
198 Sylvestre (2017) at 55.
199 Abbotsford (City) v Shantz, 2015 BCSC 1909 at paras 69, 71, 213, 219 [Shantz].
200 Canada (Attorney General) v PHS Community Services Society, 2011 SCC 44 at para 10 [PHS]. See also Ryan McNeil et al, “Area restrictions, risk,
harm and health care access among people who use drugs in Vancouver, Canada: A spatially oriented qualitative study” (2015) 35 Health Place
at 70.
201 Canada (Attorney General) v Beford, 2013 SCC 72 at paras 70, 155 [Bedford]. See also K. Shannon et al, “Structural and environmental barriers
to condom use negotiation with clients among female sex workers: implications for HIV-prevention strategies and policy” (2009) 99:4 American
Journal of Public Health at 659; BDL Marshall et al., “Pathways to HIV risk and vulnerability among lesbian, gay, bisexual, and transgendered
methamphetamine users: a multi-cohort gender-based analysis” (2011) 11:1 BMC Public Health at 20.
202 Becki Ross, “Sex and (Evacuation from) the City: The Moral and Legal Regulation of Sex Workers in Vancouver’s West End, 1975-1985” (2010) 13:2
Sexualities at 197-211.
203 Wally T Oppal, CQ, “Forsaken: The Report of the Missing Women Commission of Inquiry, Executive Summary” at 9-11 & “Forsaken: The Report
of the Missing Women Commission of Inquiry, Volume 1” Missing Women Commission of Inquiry (19 November 2012) at 36-73.
204 Poor Relief Act 1662, 14 Car 2 c 12, better known as the1662 Settlement and Removal Act.
205 See e.g. Reid at para 83 on “banishment” from community.
206 Susan Boyd, Connie Carter & Donald MacPherson, More Harm than Good: Drug Policy in Canada (Fernwood Publishing, 2016) at 17.
207 Boyd at chapter 3.
208 Deshman & Myers at 4.
209 See Deshman & Myers at 72-79.
210 For more on policing as a means of controlling marginalized populations, see Kevin Fitzpatrick, & Brad Myrstol, “The Jailing of America’s Home-
less: Evaluating the Rabble Management Thesis” (2011) 57:2 Crime & Delinquency at 271 and Chesnay (2013).
211 Sylvestre (2017) at 61.
212 Cowper (2012) at 27.
213 Cowper (2012) at 27.
PROJECT INCLUSION 83
Service Providers Speak Out
As part of Project Inclusion research, we conducted an online • “Conditions on release are a huge problem: ‘abstain from
survey and heard from over 100 service providers who work drugs and alcohol, et cetera.’ This is an impossible task
with people experiencing homelessness, poverty, and violence and results in long periods of incarceration for people with
across BC. Some of the people they work with use substances substance use problems.”
and some have significant health issues.
• “People with addictions have been put on sobriety
Service providers had much to tell us about behavioural
conditions, which is a setup for failure and has resulted as
conditions. The following are excerpts from some of the online
such. These clients would have been jailed if it weren’t for
survey responses we received.
[the] tireless advocacy work of staff.”
ON RED ZONE CONDITIONS • “The sobriety conditions are a huge stumbling block…
Indigenous men and women are the most frequently
• “Red zoning is a common event in our community. Many profiled.”
clients are unable to access health and social services in the
downtown core.” • “Sobriety conditions seem ridiculous as people are addicted
and can’t just stop because the RCMP tell them to…there is
• “Red zoning has a huge impact on our client base—often trauma and all sorts of reasons people use and having these
cutting off our participants from community supports they conditions does not help people!”
have come to rely on.”
• “Sobriety conditions may result in women not calling
• “Red zones can prohibit people from accessing health and for help when it is needed. There have been many
social services.” circumstances of a lack of understanding by law
enforcement regarding the cycle of violence and/or victim
• “I do not find red zoning to be beneficial. While I understand blaming language when women report abuse or violence—
the logic in throttling access to certain community areas, including sexualized violence.”
I see my clients either thwarting the order and ending up
in more trouble, or…suddenly…caught in a spiral of risk
ON NO-CARRY DRUG PARAPHERNALIA CONDITIONS
behaviours due to a disconnect from the services they
depend on.”
• “Participants who are forbidden from carrying paraphernalia
have often not curbed use, but instead are resistant to
ON ABSTINENCE CONDITIONS accepting harm reduction supplies on the chance they’ll be
randomly stopped.”
• “Clients being incarcerated for breach of probation when
the breach is alcohol—in such cases incarceration further • “Prohibitions on carrying drug paraphernalia has led to
stigmatizes the client and adds to the instability in many situations where clients we are aware are involved in active
areas of their lives.” addiction refuse harm reduction supplies.”
WHAT RESULTS FROM called my doctor and said I was and overdosed six times in just one
BEHAVIOURAL CONDITIONS: abusing my pain meds and they cut day.
AN ONGOING CYCLE OF me off. A week later I was shooting
CRIMINALIZATION heroin (396).” Over the last year he had become
known in his community as a
Sitting on the side of the road, We chatted for almost two hours as “helper,” a “babysitter,” and as
watching the police roll by and he talked about his job, his family, his “Narcan Man” for his dedication to
request someone’s ID, we waited home, his workplace injury, and the carrying harm reduction supplies and
for a bylaw officers to leave so we car accident that almost killed him administering naloxone to those who
could continue interviewing people many years ago. He was in a coma are overdosing. Then he picked up his
for Project Inclusion. Watching this for a month. Today, he still struggles first criminal charge. He was arrested
unfold, we reflected upon how an with “memory concentration, for drug possession while he was
individual’s spiral into criminalization cognition, comprehension—all sorts using in a park; it was the first time
can happen over many years, or of things,” he said. He was on a pain he’d been in trouble with the law in
sometimes, just a matter of months. management plan until his doctor cut over a decade and a half.
One man in his thirties told us he him off his medications just over a
had been living outside for just over year ago, sending him to the streets With that first charge came a host
a year, but before that, he owned to find the opioids he relies on. Since of conditions that, within just a year,
his own house. Things changed then, he had lost his home, spent his sent him into a cycle of criminal
drastically when, as he described it, “I first Christmas without his children, charges. As he traced the red zone
got into heroin. My wife was stealing out on a map, he said because he
my painkillers and the pharmacy was picked up on a drug charge he
PROJECT INCLUSION 85
Other participants expressed can create impossibilities for some of those orders.215 – Defence
exasperation at the impact of people that lead them into the counsel, Vancouver
behavioural conditions prior to criminal justice system so frequently
even finding out if they were being that some have come to refer to it as It is true that some people manage
prosecuted for an alleged offence. “life on the installment plan.” to avoid conviction where the Crown
They could, after all, end up having or the court determines their breach
the charges dropped for their original Conditions create impossible is acceptable or justifiable. That does
offence “by the time I get to court situations for people already living not, however, mean that people don’t
(208),” as one participant described it. vulnerably. Many participants told still end up spending days in jail.
us about the futility of signing
Some people had trouble their names on a set of conditions, As one woman explained to us, “I
remembering back to their last actual alongside the frustration that there spent five days in jail waiting for the
offence, having spent the last two or are no alternatives to agreeing to a judge to come back. I went to the
more years accruing 12 or even 18 contract that sets them up for failure. 7-Eleven. I know. I needed tampons
breaches. This cycle can go on for As one person put it, “I just know that and my boyfriend wasn’t home. So,
years. As one Indigenous participant when I’m signing that paper I’ll be I went to get tampons and that’s
explained, “I’ve been on probation for back (28).” what my lawyer had to say in court.
nine years of my life…because I just It was embarrassing as hell (439),”
been nothing but breaching…drinking Conditions have Harmful, Well- she said. “Yeah, but they found it
yeah, I gotta pull it off [have the Hidden Daily Impacts an acceptable breach. So, they let
condition lifted] so they can’t breach me go, but I did five days.” Another
The impacts of these conditions are woman told us that she spent 18
me anymore (12).”
often only considered once someone days in cells for trying to get to the
Conditions are sometimes held out appears in court. For many people, hospital with a broken foot (409).
as a way of minimizing the use of that comes far too late because the
incarceration, but this is far from the harmful impacts are felt from the We explore how conditions intersect
reality. In fact, conditions are onerous moment the conditions are imposed with participants’ daily realities in
sanctions, often imposed on people and every day of a person’s life while detail below.
who have not actually been convicted subject to them. “My whole life has
of a crime. It is important to been organized around trying to How Conditions Intersect with
remember that the starting point for appease these people (304),” one Homelessness
these individuals is not incarceration; participant said.
The anxiety in people’s voices
it is release into the community. is palpable as they describe the
In another recent study, even lawyers
have expressed frustration at the challenges of navigating an already
For this reason, it is most accurate
impossible burdens conditions place complicated set of life circumstances
to view each condition added to
on people’s lives. while additional court-mandated
a person’s release as an additional
expectations pile up on them.
burden, rather than a reprieve from
I look at some of those orders and
jail. It is not a better alternative It’s the freaking distress that builds
think if I were told to do as many
to incarceration, as some people up when you got to worry about
things as these guys were told to
coming before the courts are led shit like that, like it’s crazy…Oh it
do, and I got arrested every time
to believe. The bail system, except makes me just want to almost just
I was late, I’d be in jail all the time
in very specific circumstances, want to die basically—like give up,
too. It becomes overwhelming the
presumes that people will be right. Yeah it’s fucked up. – 59
numbers of requirements…and
released unless their detention
you are dealing with a person who
can be justified. Justification is We heard from many people
probably has a drug or alcohol
also required for every condition experiencing homelessness about
addiction, who often has a mental
imposed. That, however, is not how how hard it was to abide by their
illness, who doesn’t have a solid
it is experienced by many of the conditions and how often they
living environment and being
people we heard from. Participants were charged with breaching
told to keep more appointments
expressed feeling forced to consent them. We were not, however, able
then I could handle keeping in a
to harsh conditions for fear that the to access quantitative data that
week. And they probably don’t
alternative would be to remain in might demonstrate the negative
have an alarm clock either. So
jail—rather than be released on more intersection of having multiple bail
how in the world do we expect
reasonable conditions. Even in cases or probation conditions and being
them to comply with those kinds
where a person has been found homeless because police and courts
of things?…It would be difficult
guilty and sentenced to probation, simply do not track that data. What
for the people that are imposing
the imposition of these conditions we do know is that almost everyone
those orders to live by some
PROJECT INCLUSION 87
especially if you’re looking for night because 12 o’clock is going to community members while trying to
housing after having been homeless be my curfew.” earn income during the day.
for any period of time.
Staying in a homeless shelter “I had a curfew from 6 at night ‘til 9
For her, the curfew made her only can become a risky or impossible in the morning…it was hell (439),”
housing option, the one place she proposition if you have a curfew one woman told us. “I couldn’t go
could have lived “no questions condition. Keeping one’s bed at anywhere. I couldn’t go bottling.
asked,” nearly impossible. Her fear a shelter is a constant challenge We tend to bottle at night, because
of bringing police attention to her given that shelters generally provide people don’t bug you so much.”
neighbours was so significant that only temporary beds or mats as Instead of binning at night, when she
she worried her “neighbours are accommodation and it would be is safe from harassment and threats
going to probably kill me and set my challenging for a person to secure a of violence from members of the
house on fire (362).” shelter bed over the entire period of public, she was left with the choice
time they are subject to a curfew. to bin during the day—an unsafe
Curfews may also fail to take into proposition for her—or to go without
consideration the survival strategies Curfew conditions further endanger that necessary source of income.
of women on the streets who rely on people who are already facing
a network of friends and boyfriends barriers to meeting their essential Our interviews revealed that some
to keep them safe, and who will risk needs such as shelter and income. people, particularly those impacted
jail not to lose those connections. One study participant was ordered to by poverty, homelessness, and
“I was always out with my so-called stay at a shelter from which he’d been disability, are ordered to always carry
boyfriend, he wouldn’t let me go back banned. We also heard from a person a paper copy of their court conditions
[to the shelter], he’d say we’re done if about the shelter calling the police on as a reminder of their obligations.
you go back to that place (289a),” one people who were late for their curfew. In principle, it sounds reasonable to
woman told us. “So I would stay out “They called [police] for a girl that ask that someone carry a reminder
for him.” wasn’t in on time. They called the of their conditions, especially when
cops and I was there, the cops were people struggle with memory loss,
Courts need to be alive to the waiting and she was only 10 minutes cognitive impairment, and brain
realities people are living in and turn late. Like nine o’clock (289b),” one injury. But mandating a person
their minds to the harms they may person said. “She had a curfew.” to have their papers with them
be causing by either isolating women at all times becomes impossible
or putting them in conflict with their When people are camping out, when living homeless. We detail
social safety networks through the abiding by a curfew is even more the frequency with which people
imposition of behavioural conditions. challenging. The same man who was experiencing homelessness lose their
struggling to find housing because of personal possessions due to theft, or
Several participants shared that they his curfew also described to us how have their belongings discarded by
struggled to find housing because he navigated his conditions while city staff, police, or members of the
of a curfew condition. As one man being homeless in the streets. public in Part 1.1
explained, the already arduous
challenge of finding housing while I went to jail for three months It’s worth noting that police do not
homeless is compounded when one and I got out, a year of curfew, rely on people’s papers to monitor
also risks being falsely reported to right, and I was homeless. I told their conditions. Police in BC share
police by a roommate for breaching my probation officer this. I was a common database used by every
curfew. “I don’t really want to rent a phoning the police station every policing agency in the province
room because maybe the people that day to say this is where I am called the Police Records Information
don’t like me and answer the door staying and I had so much anxiety, Management Environment (PRIME-
and [say] ‘he is not here’. I have had right, and it was getting bad. I was BC). Police can use that database to
that happen twice (59).” having seizures at the time too, access a person’s list of conditions
right, because of all the stress. anytime they’re at work. While
Knowing that the police may come by And so I am like freaking out all we discuss some of the problems
to check someone’s curfew can make day, like I don’t want to go back to related to a lack of timely updates
people undesirable as roommates. jail, so then it’s like curfew and the to the database below, the fact
“I can’t go and find a room to rent crimes weren’t even committed in that such a database is readily
because I feel like I have to tell the nighttime, right. – 59 available to any police officer
the people that the cops could be
working in BC underscores the
showing up (59),” he told us. “And it’s For other participants, a curfew
redundancy of expecting people
like, who is going to want to rent to condition meant either going without
navigating homelessness to hold
someone where the cops could be income or putting themselves at
onto the pieces of paper listing
showing up anywhere before 12 at greater risk of harassment from other
their conditions. That they also risk
criminal sanction for losing them,
216 Picklists are lists of standardized terms used to craft court-imposed conditions. Provincial Court of British Columbia, “Bail Orders Picklist”, May 1,
2017, online: http://www.provincialcourt.bc.ca/types-of-cases/criminal-and-youth/links#Q7.
217 See Abu S Abdul-Quader et al, “Effectiveness of Structural-Level Needle/Syringe Programs to Reduce HCV and HIV Infection Among People
Who Inject Drugs: A Systematic Review” (2013) 17:9 Aids and Behavior 2878; N. Palmateer, et al, “Evidence for the effectiveness of sterile
injecting equipment provision in preventing hepatitis C and human immunodeficiency virus transmission among injecting drug users: A review
of reviews” (2010) 105:5 Addiction 844; A. Wodak & A. Cooney, “Effectiveness of sterile needle and syringe programs” (2005) 16:1 International
Journal of Drug Policy at 31; World Health Organization, WHO, UNODC, UNAIDS Technical Guide for countries to set targets for universal access
to HIV prevention, treatment and care for injecting drug user (World Health Organization, 2009).
218 British Columbia Ministry of Health, From Hope to Health: Towards an AIDS-free Generation, (British Columbia Ministry of Health, 2012) at 2.
219 See e.g. British Columbia Ministry of Health, From Hope to Health: Towards an AIDS-free Generation, 2015-2016 Progress Report, (British Co-
lumbia Ministry of Health, 2016).
PROJECT INCLUSION 89
Between October 1, clean shit, just sneaking around and Rather than not accessing clean
2014 and September using whatever I can to get away supplies, some people told
with…I’m going to fucking get clean us, regretfully, that they found
30, 2017 alone, BC shit and have it on me all the time themselves disposing of their
courts imposed (349),” they said. “Whether the cops syringes less safely out of fear that
prohibitions on carrying like it or not, I don’t care. I mean it’s they’d get stopped, searched, and
paraphernalia (in bail stupid; like, fucking, they breached charged. One participant told us how
and probation) 3,868 me for having a needle on me that’s he hastily disposed of their harm
clean…I’m an addict, I’m going to reduction supplies to avoid charges
times on 2,505 different use, I’m going to relapse, I’m going for carrying them. “Pop them in the
people—meaning some to have slips, you know, whether I’m bush whatever right, was that a cop?
individuals faced this trying or not, it’s going to happen, so Chuck. Keep walking, just leave it
condition multiple times I’d rather do it where it’s safe.” there (59),” he said. “I have probably
over that time period. done that a few times, I am sorry to
One of the primary stated goals of say.”
imposing conditions on people is
for the protection of public safety. No one wants to find improperly
Prohibiting people from carrying discarded syringes, including the
harm reduction supplies does the people who use syringes themselves.
opposite. It is clear that people who People do not set out to transmit
regularly use substances are not disease or to harm another person.
compelled or reasonably able to stop Court conditions that increase the
using a substance simply because of risk of finding improperly discarded
a court condition. Asking them to do harm reduction equipment fail to
so in a dangerous way does nothing benefit anyone.
to promote their safety or that of the
public. Anti-paraphernalia conditions remain
so common that they are included
in a 2017 Provincial Court document
standardizing conditions, making it
No one wants to find easier for judges to impose them by
picking them off a set list.220 Based
improperly discarded on data accessed through a Freedom
syringes, including the of Information request, between
people who use syringes October 1, 2014 and September
themselves. People do 30, 2017 alone, BC courts imposed
not set out to transmit prohibitions on carrying paraphernalia
(in bail and probation) 3,868 times
disease or to harm on 2,505 different people—meaning
another person. Court some individuals faced this condition
conditions that increase multiple times over that time period.
the risk of finding
Courts do not, however, track the
improperly discarded specific details of the breach charges
harm reduction laid against people. Therefore, it
equipment fail to benefit was impossible for us to assess how
anyone. many of those people were actually
charged and convicted for possessing
life-saving health supplies. As
we learned from the people we
Anti-paraphernalia conditions create interviewed, much of the harm is
an atmosphere of fear that causes already done even if people are not
people to make decisions that have arrested for breaching their condition.
negative consequences for public
health and safety beyond the risk of
sharing or reusing a syringe.
220 Provincial Court of British Columbia, “Bail Orders Picklist” May 1, 2017 & Provincial Court of
British Columbia, “Probation Orders Picklist” May 1, 2017, online: http://www.provincialcourt.
bc.ca/types-of-cases/criminal-and-youth/links#Q7.
PROJECT INCLUSION 91
such conditions in Omeasso, Criminal Code, judges are required of such conditions. Between October
comparing abstinence conditions to take “the circumstances of 1, 2014 and September 30, 2017,
being imposed on a person living aboriginal offenders” into account 31,914 abstinence conditions were
with alcoholism to impossible in sentencing, especially to look at imposed across BC in the context
financial obligations: “An example “all available sanctions other than of bail and probation, on 21,413
of that would be to release the imprisonment that are reasonable in different people, meaning some
impecunious accused on $1 million the circumstances”. In R. v. Gladue, people were subject to that condition
cash bail on the basis that he could [1999], the Supreme Court of Canada more than once during that time
buy a lottery ticket and potentially (SCC) laid out principles for courts frame.230
win enough money to post that cash to employ in considering alternative
bail.”226 sentencing options, known as the Far from assisting people to stop
‘Gladue Factors’ and directed the using drugs or alcohol, some people
Alcohol or drug-related abstinence courts to consider broad systemic noted that the pressure of conditions,
conditions drove extensive and background factors that affect abstinence in particular, increased
involvement in the criminal justice Indigenous people generally and their need for a coping mechanism.
system for Indigenous study the offender in particular. Despite “The pressure makes you want to
participants. It was not possible, these instructions, in 2012, the SCC drink, drink, drink (278),” one person
based on data obtained from Court in Ipeelee, Lebel J. noted that the told us.
Services BC through a freedom of “cautious optimism [in Gladue] has
information request, to determine Regarding alcohol in particular,
not been borne out. In fact, statistics
whether or not Indigenous people expecting someone who drinks
indicate that the overrepresentation
are overwhelmingly impacted by heavily to become abstinent
and alienation of Aboriginal peoples
abstinence conditions; however, can be life-threatening, causing
in the criminal justice system has
nearly half of the Indigenous people severe (grand mal) seizures, high
only worsened.”228 In Ipeelee, the SCC
we heard from reported having blood pressure, delusions, and
reaffirmed the importance of Gladue,
been given an abstinence condition hallucinations.231 The “kindling
and confirmed that it applies in all
at some point.227 Based on what phenomenon” is particularly relevant,
contexts.
we heard, abstinence conditions and refers to the fact that that
were often imposed even where Within the scope of the participants repeated withdrawal for those who
the offence for which they’d been in this report, the imposition of are alcohol dependent, can not only
charged was not alcohol- or drug- abstinence conditions on Indigenous intensify the symptoms, but can also
related. participants and the negative contribute to alcohol-related long-
impact of such conditions on term brain damage and cognitive
What is clear from our interviews those participants was notable, impairment.232
is that abstinence conditions despite existing legal requirements
do not properly account for the Further, omitting an abstinence
that courts consider the unique
generational impacts of trauma, condition from a court order
circumstances of Indigenous people
colonization, poverty, and addiction. where the individual is not able
coming before the Court.229
They appear to be at odds with to comply with it “does not place
efforts towards reconciliation and Despite these concerns, data from the community in any greater
remedying the overrepresentation Court Services BC, obtained through danger,” because the person will use
of Indigenous people in our jails and a Freedom of Information request, substances regardless.233 Imposing
courts. In Section 718.2(e) of the reflects the ongoing and rampant use such conditions, however, puts the
235 Data from another Canadian jurisdiction also indicates a positive correlation between the imposition of abstinence conditions and
subsequent breach charges. See John Howard Society (2013) at 12.
PROJECT INCLUSION 93
As an Alternative to Abstinence
Conditions, Harm Reduction Works
Community-based, non-coercive
interventions show positive results
when compared to the impacts of
impossible-to-maintain abstinence
conditions on the lives of the people
on whom they are imposed. Whether
harm reduction shows up in the form
of access to needle exchanges,236
methadone,237 prescription heroin or
hydromorphone,238 or access to safe
and managed alcohol,239 the positive
health outcomes are extensive and
well documented. Basic supports
such as income assistance and
housing alongside health care and
especially peer-driven services, must
be made more available to people
across BC rather than relying on the
criminal justice system to manage
people living with the impacts
of homelessness and complex
substance use issues.
PROJECT INCLUSION 95
dealer can be an important safety Red Zones Isolate People from zones are set up, basically, to make
measure. Red zones, while not Essential Services people to go jail.”
fulfilling the public safety purpose of Previously in this chapter, we
reducing drug trafficking, reduce the detailed how behavioural conditions Red Zones Increase Isolation
ability of substance users to protect can drive people into a cycle of As we travelled across the province
themselves from overdose by buying criminalization. Red zones are an to conduct research for Project
from a known source. example of this phenomenon, Inclusion, we visited spaces where
We cannot overstate the impact particularly in instances where the people created community, often on
of geographic area restrictions on person subjected to a red zone is sidewalks, in parks, and near service
the lives and wellness of Project navigating intersecting barriers like providers. We heard about the
Inclusion participants. Red zones can homelessness, poverty, substance devastation they experience when
ban people from accessing shelters use, and/or mental health issues. In community falls away, for people
and low-barrier housing options, those cases, red zones force them to living with few resources, tenuous
health care and overdose prevention choose between compliance with the support systems, and the impacts
services, food, opportunities for order and meeting basic health and of trauma, a rising sense of isolation
income generation, and community— safety needs when the red zone cuts can mark a breaking point. For the
in other words, the necessities of life. them off from accessing the services people we heard from, red zones
and community connections that exile people from their communities
they rely upon.247 and the vital social connections that
Red Zones can Cause Homelessness
help keep them well.
For people who have few options One participant explained it this
for housing, red zones can create way: “Being homeless and then One woman made a point
housing insecurity and homelessness red zone[d] from downtown, I had of countering the popular
as they can drive people already living nowhere to go to sleep. I couldn’t misconception that forcing a person
vulnerably closer to the margins and go eat because where they go eat out of the “wrong crowd” or a “tough
farther away from the only supports down here at [service provider], neighbourhood” can be the tough
they have. everything is downtown. So, that love they need to move somewhere
was a pretty rough two years for me safer and make better friends. For this
One man we spoke with lost his (266).” When we asked if it affected woman and those she holds dear, red
housing after he was red-zoned from his ability to access harm reduction zones that keep them away from the
it due to a drug raid. He told us about supplies, he replied, “Yeah. I got people that mean the most to them
how the red zone deepened his really sick because of my HIV, I only create more loss and fear.
vulnerability. ended up in hospital twice because…
they wouldn’t even let me go to see “I got caught once in my red zone
Well, I had nowhere else I could my doctor because my doctor is and I pleaded with [the police],
go stay, so I had to hit the streets. downtown and [they] told me if I had like come on you guys, I have got
Like, all my friends, in that to go to see my doctor for anything nowhere to go…I have no place to go,
sense, were living actually in the I’d have to go to emergency.” I have no family out here, and…I’m
apartment building as well. So, fucked, basically (427),” she told us.
there was nowhere for me to go, Another participant told us how But she didn’t feel her concerns were
couch surf, or sleep, so I had to red zones feel like traps because, taken seriously. For her, packing up
tent it. – 459a for people in their community, and leaving the only community to
it’s impossible not to violate the which she feels a sense of belonging
Not only did the red zone cause condition because the red zone is would be disastrous. “They’re telling
him to lose his housing, it also cut the only place where they can access me…Oh, there is lot of places you
him off from his primary social food. He told us how the “big red can go, like get out of the city, right…I
network, where he would otherwise zone” in his community contains shook my head and said, that’s not
have turned in a time of crisis for food banks and other essential possible…I’m terrified to go anywhere
emergency housing. Without access services people need to access daily else…I don’t know anybody…it’s just
to that community, he turned to for survival. “I mean, how are you I’ve heard so many horror stories…
living outdoors in a tent. Other supposed to go and have lunch if anywhere else outside this area.”
study participants shared similar you’re not allowed to go in there
experiences of being red-zoned from (28)?” he asked, adding he’s seen It is possible that red zoning could
their communities of support. police sitting outside food lineups benefit a small minority of people,
waiting for people with red zones. such as people who are otherwise
well-supported and who are not
With all of this stacked against him, it deeply enmeshed in the community
seemed to this participant that “red from which they are being red-
PROJECT INCLUSION 97
people they know and staying close which forced her to make a difficult immediately breach (396),” another
to the areas with which they are daily journey to receive methadone person told us.
familiar are primary safety tactics for from a downtown doctor. When
them. Being prohibited from entering she advocated on her own behalf It seems police can even visibly
those areas doesn’t mean women to not be subjected to a red zone identify a person in their red zone,
will suddenly find family, resources, that included her methadone clinic, note the occurrence, and not inform
and friends they did not previously she was told, “Well, you got to work the individual at the time that they’ve
have. It does, however, make them around it (395).” been caught in their red zone. One
an easier target when they are on the participant told us about attending
street. If people are to avoid committing court one day to find out he was
crime and create supportive networks being charged with multiple red zone
And anybody that knows that if to keep them away from the criminal breaches, long after he’d breached
they’re red-zoned, then they’re justice system, red zoning them from them. “They don’t even have to come
most susceptible to being jacked medical treatment for addiction is up to you and give you a ticket, they
by beat cops and from looky- poor policy, and in the context of the can just breach you from seeing you
lous and people that work for the current overdose crisis, it can be life- (396),” he said. “I had a bunch of
police, the informants, and all that threatening. breaches when I was in court handed
sort of shit.252 – 56 to me from that, that I never even
Increased Police Surveillance—in the got tickets from.” He was given no
Our courts have recognized Name of Public Safety? notice to change his behaviour and
that displacement and isolation, no warning that he could be facing
particularly of women who are street Red zone breaches are unique in their
a slew of new criminal charges if he
involved, increases the risk of them capacity to increase powers of police
couldn’t have his red zone varied.
experiencing assault, robbery, or even surveillance. One need do nothing
Though such charges may be hard
murder.253 more than be physically present
to prove where no arrest occurred at
in a location in order to attract
the time, they can nonetheless bring
Red Zones can Cause Serious Health criminal sanction. This can lead
people back into the criminal justice
Consequences people to avoid services or disguise
system again and again.
themselves, trying to avoid detection
People seeking assistance to treat as they enter the red zone to access One man we spoke with had been
addictions often have few options what they need. This has even convicted of breaching his conditions
for medical treatment. Many people greater implications for people living not to carry drug paraphernalia,
spoke to us about the difficulty of in smaller communities, where small resulting in him being red-zoned.
finding doctors who would treat populations mean that citizens are His red zone resulted in years of
them and the limited availability of familiar to one another and people entanglement with the criminal
methadone and other addictions lack privacy over their identity. justice system. His time in jail led to
treatment in their communities. The
profound disconnect and isolation
consequences for a person who is One man, who lost his housing when
from anyone he knew.
red-zoned away from those health he was cut off of his pain medication,
services, therefore, can be dire. As told us that he does not have the I’ve been red-zoned. It fucked
one participant put it, “I was red- luxury of walking down the street me right up. It kept me in the
zoned for two years…I ended up like we do because the police know system for…years. I did a four-
in hospital twice because [of that] him and can target him on sight for month fucking bit with 18 months
(266).” breaching his red zone. He told us he probation on there. I did like a year,
doesn’t breach his red zone to harm all in jail, from…breaches. It went
For people who need to access anyone; he breaches it to access the from 18 months to…four years.
methadone daily, do not have ready spaces and communities that he Finally I get done, and by that time
access to transportation, and have relies on. Breaches have now become I lost right touch with everyone. –
other physical ailments that impact a regular, negative fixture in his life 332 (focus group)
their mobility, being prohibited from (362).
their community clinic can create Our research strongly suggests that
barriers to their success in addictions His experiences were familiar to other red zones can result in a cycle of
treatment.254 study participants. “They know you, warrants, arrests, incarceration, and
right, and recognize you…as soon more stringent release conditions
One woman we spoke with shared as they see you in your red zone, that exacerbate the cycle of
her experiences with being red-
criminalization. The magnitude of this
zoned from her methadone clinic,
252 See also Reid at para 20.
253 See Reid at para 31; Bedford para 70.
254 See also Reid at para 47.
PROJECT INCLUSION 99
All adult and youth criminal matters for breaching various offences. For Project Inclusion. We are mindful that
are administered, managed, tracked, example, data is not available to at the time of writing, C-75 was only
and documented through a database assess how often curfew conditions at second reading. It may go through
called the JUSTIN Justice Information are imposed on people experiencing significant amendments, and may
System (JUSTIN), a system homelessness. never become law.
containing BC Courts information.258
There is currently no way, however, Shortcomings in accountability C-75 proposes to streamline the
to track what conditions are being mechanisms also impact people bail process, ostensibly with the
breached on a statistical level without directly. People we spoke with often aim to decrease the number of
the use of complex computer science told us that they found it difficult to conditions to which people are
analysis tools,259 as doing so would understand what specific offence subjected, decreasing the number
require individually reviewing every their conditions were tied to, how of criminal convictions for breaches
single breach allegation that comes long their conditions applied, and of conditions, and reducing the time
before the courts. This is not inherent how they were to be enforced. Some people spend in courts and jails for
to the nature of breach allegations study participants told us they were those breaches. How these proposed
nor to the court’s process; it is caused unaware when their conditions amendments will operate is,
by how breaches are logged in had been lifted. Without that however, unclear and some portions
JUSTIN.260 knowledge, they had continued to of C-75 raise preliminary concerns for
deal unnecessarily with red zones and us.
Due to the manner by which tracking breaches, even in cases where the
occurs, we are unable to discern Crown never approved the underlying C-75 reiterates and reinforces the
exact numbers of breach charges laid charges. existing requirement that people be
or convictions entered in relation to released under the least restrictive
particular conditions. Our Freedom This lack of accountability extends terms, including without conditions,
of Information request returned data to what seems to be an uneven unless Crown justifies the imposition
on the number of times a particular landscape of police database of each condition. It also legislates
condition had been imposed and updates. The result is that PRIME- the requirement to consider the
the number of individuals upon BC may not always reflect recent overrepresentation of Indigenous
whom such conditions has been changes to people’s conditions, people in the criminal justice
imposed. The numerical data did including when they are lifted. system in determining whether
not, however, accurately capture or not to release a person on bail.
One person we spoke with described It extends such considerations
the number of times people were
how they were arrested for a breach, to other vulnerable populations
charged or convicted for breaching
even after they’d completed bail overrepresented in the criminal
specific conditions. That is because
or probation. We found this to be justice system and who are
all breach of bail charges (for all
a shared experience among some disadvantaged in obtaining release on
conditions) are laid pursuant to
other participants and heard similar bail. This is a powerful step towards
one section of the Criminal Code,
stories from some criminal defence recognizing the systemic injustices
section 145, and all breaches of
counsel. against Indigenous people resulting
probation are laid pursuant to section
733.1. The specifics of each breach in their drastic overrepresentation
I got nailed for [a] paraphernalia
charge are not tracked in a way that in prisons. It will hopefully also
charge and it wasn’t even in my
allows numerical data to readily be benefit other racialized people who
conditions anymore. It was in
extracted for breaches of each type are more likely to be detained and
my previous conditions that had
of condition. are overrepresented in the criminal
ended six weeks before I got
system. C-75 does not define its use
arrested. And they picked me up
Tracking such data would allow us, for of the phrase “vulnerable population,”
on a paraphernalia [breach] and
example, to easily assess how often so it remains to be seen whether
charged me. – 153
people are charged or convicted for people living with addictions,
carrying harm reduction equipment experiencing homelessness, or deep
or breaching abstinence conditions. BILL C-75: LAW REFORM AND poverty will also benefit from this
Further, our own data request UNCERTAINTY amendment.
reflects the need to better track how The proposed reforms put forward in
often conditions are imposed, who C-75 are wide-ranging. The proposed Two amendments in particular
is being subject to them, and how reforms to court-imposed conditions may have unintended negative
often people are being convicted and bail are particularly relevant to
258 Office of the Auditor General of B.C., Securing the JUSTIN system: access and security audit at the Ministry of Justice (Office of the Auditor
General of B.C., 2013) at 6.
259 Sylvestre (2017) at 12-13.
260 Sylvestre (2017) at 46.
i. “drug paraphernalia” as harm reduction equipment; 6. Relevant policing stakeholders must update database
systems, e.g. PRIME-BC, to:
ii. “Safe Consumption Sites” and “Overdose Prevention
Sites”; a. require that all police-imposed conditions are
electronically registered, including:
iii. needle exchange;
i. the date of imposition;
iv. opioid substitution treatment; and
ii. the date or causal mechanism by which the condition
v. low-barrier health services. will expire;
4. Police Services must create a provincial practice direction iii. the specific content of the condition; and
for police officers upon release of an accused, adopting the
following recommendations of the Canadian Civil Liberties iv. the underlying reason for imposing the condition.
Association:264 b. ensure that PRIME-BC can be searched to track all police-
a. police should make increased use of their power to imposed conditions in the aggregate, rather than only
release and ensure that any conditions imposed are being tied to an individual’s file.
constitutional and legally permissible under the Criminal
Code;